--- Am. Tribal Law ----, 2017 WL 1136983 (Fort Peck C.A.)
Fort Peck Court of Appeals.
SO ORDERED this 13th day of March 2017.
Appeal from the Fort Peck Tribal Court, Michael Headdress, Presiding Judge.

Attorneys and Law Firms
Appellant appeared pro se.
Before Smith, Chief Justice, and Shanley and Knudsen, Associate Justices.


Maylinn Smith, Chief Justice

¶1 This matter comes before this Court on a Notice of Appeal filed by Appellant, Mattie Big Leggins, on September 29, 2016 challenging her conviction on three counts of Neglect of a Child, in violation of 7 CCOJ 241, after a trial in absentia. The first count is a Class A Misdemeanor and the second and third counts are felony offenses.



¶2 A review of the record reflects that Appellant Big Leggins was charged with three counts of Neglect of a Child to which she entered not guilty pleas and requested a bench trial. On the date of her trial, she failed to appear and the Tribal Court conducted a trial in absentia. The record is void of any proof of service on Appellant Big Leggins regarding notice of August 29, 2016 bench trial and also does not reflect whether the Lower Court conducted a full trial with witnesses and evidence presented sufficient for meeting the beyond a reasonable doubt standard needed to support a conviction on all three charges. Nevertheless, the lower court issued its “Final Disposition” on August 29, 2016, finding Appellant Big Leggins guilty of all three charges and sentenced her to 45 days in jail on each charge for a total of 135 days incarceration. Because Appellant Big Leggins was not present, the Tribal Court issued an arrest warrant for her to begin serving her sentence.

¶3 Appellant Big Leggins was arrested on September 20, 2016 on the warrant and provided a copy of her conviction. She filed a Notice of Appeal on September 29, 2016 while in the custody of the Fort Peck Detention Center.


Statement of Jurisdiction

¶4 The Fort Peck Appellate Court has jurisdiction to review all final orders from the Fort Peck Tribal Court when a timely appeal is made. 2 CCOJ § 202. The Final Disposition is a final order, which Defendant received on September 20, 2015, and filed her Notice of Appeal within the fifteen (15) day statutory period, therefore the notice of appeal is deemed timely filed.

¶5 This Court granted review on December 20, 2016 and allowed the parties an opportunity to brief the issues raised by this appeal. Nothing additional was filed by either party to this matter. All times for filing responsive pleadings have expired.


Standard of Review

¶6 The jurisdiction of the Court of Appeals is extended to review determinations of the Tribal Court on matters of law, but the Appellate Court shall not set aside factual findings if such findings are supported by substantial evidence. 2 CCOJ § 202. Questions of law shall be reviewed de novo. 2 CCOJ § 202.



¶7 The following issue has been raised for review by Appellant Big Leggins:
1. Did the lower court err when it held a trial in Defendant’s absence on two felony charges?



¶8 The Fort Peck Code of Justice, Criminal Procedures, allows for a trial in the absence of a defendant in particular situations. Pursuant to Rule 509, trials in absentia are permissible in all misdemeanor cases, if the Defendant is represented by counsel who is authorized to act on their behalf. 6 CCOJ 509(a). If the Defendant is not represented, the Court may, in its discretion, do one of the following: 1) order a continuance; 2) forfeit bail; 3) issue an arrest warrant; or 4)) proceed with the trial after finding that the Defendant had knowledge of the trial date and is voluntarily absent.

¶9 When the Defendant is on trial for a felony offense, the Court may only conduct a trial in absentia if the defendant was present at the commencement of the trial and then subsequently leaves and is voluntarily absent for the rest of the trial or must be removed from the courtroom for disruptive behavior. 6 CCOJ 509(d).

¶10 The Fort Peck Criminal Procedures mirror the Federal Rule of Criminal Procedures, Rule 43. Similarly, the Federal Rule allows the Defendant’s absence from trial under limited circumstances. The first subsection of the Rule states:

The defendant must be present at:
(1) The initial appearance, the initial arraignment, and the plea
(2) Every trial stage, including jury impanelment and the return of the verdict; and
(3) Sentencing
Fed.R.Crim.Pro. 43.

¶11 The Federal Rule also states that a trial on misdemeanor charge(s) may proceed only upon the defendant’s written consent. Fed.R.Crim.Pro. 43(B)(2). For felony offenses, a trial in absentia is only allowed under the federal rules when the defendant is initially present at trial and then voluntarily absent after the trial has begun or is removed for disruptive behavior. Fed.R.Crim.Pro. 43(c). When a defendant is voluntarily absent under this provision, the rules state that defendant is waiving the right to be present and the trial or sentencing can proceed in the defendant’s absence. Fed.R.Crim.Pro 43(c) (2).

¶12 In Crosby v. U.S., 506 U.S. 255 (1993), the Defendant was charged with felony mail fraud charges and was present at his pre-trial conferences and hearings, but failed to appear at his trial after receiving notice of the date. The District Court proceeded to trial in absentia finding that the Defendant had adequate notice of the trial date, his absence was knowing and deliberate, and another trial would be difficult and costly. Id. The District Court concluded that the Defendant had waived his constitutional right to be present during the trial.

¶13 On appeal, the Supreme Court of the United States (SCOTUS) reversed, concluding that Federal Rule of Criminal Procedure 43 expressly dictates that the Defendant shall be present at every stage of the trial, absent specific exceptions in the rule. Crosby at 262. For a felony offense, the Rule only allows a trial in absentia when the Defendant is initially present for the trial and can therefore be found to have knowingly and voluntarily waived the right to be present during the entirety of the trial process. Id. at 261. Because Defendant Crosby was not initially present at his trial, the SCOTUS reversed and remanded to the lower court for a new trial.

¶14 In this case, like Crosby, the Defendant was not initially present at trial. Although Appellant Big Leggins initially appeared and entered not guilty pleas to the charges, she did not appear on the date of her trial. Nothing in the record reflects that Appellants failure to appear was a voluntary act or due to lack of actual notice of the date and time when the trial was scheduled. Given the insufficiency of the lower record justifying proceeding in absentia and lack of Appellant Big Leggins’ presence at the commencement of her trial on felony charges, the lower court proceedings do not satisfy the requirements established by the applicable rules in order to proceed in absentia for a felony charge.

¶15 Although the Appellate Court would advise that a trial in absentia for Felony offenses runs afoul to due process requirements, this Court declines to address any constitutional issue because a straightforward interpretation of the rules of criminal procedure are dispositive in this matter. The Fort Peck Criminal Rules of Procedure, the Federal Rules of Criminal Procedure, and federal case law prohibit a trial in absentia of a defendant who is not present at the beginning of the trial. Therefore, the judgment of the Tribal Court is reversed, Defendant’s conviction is vacated, and this case is remanded for further proceedings consistent with this opinion.



DANIEL P. KNUDSEN Associate Justice

Erin Shanley, Associate Justice

All Citations
--- Am. Tribal Law ----, 2017 WL 1136983